1. When confronted with a motion to suppress evidence based upon a claimed illegal search,
the State bears the burden of showing the search was lawful.

2. When two persons have common or shared authority over property based on their mutual
use of the property and joint access and control over it, either has the authority to consent
to its search.

3. In the absence of common or shared authority over property that is the subject of a search,
when examining a resident's authority to consent to the search of another's property within
the residence, the court should consider (1) whether the property is a type of container
which commands a high degree of privacy, (2) whether the property owner has taken
precautions to manifest the owner's subjective expectation of privacy, and (3) whether the
property owner has expressed an apparent lack of interest in the property or has
disclaimed ownership in the property.

4. The pocket of a jacket is like a purse in that it is a closed container which keeps personal
items hidden from public view. Accordingly, the pocket of a jacket is a container that
commands a high degree of privacy.

5. A social guest does not forfeit the right to privacy in the guest's jacket simply by leaving it
on a bed with the coats and jackets of other guests in the host's bedroom.

6. Kansas has adopted the apparent authority doctrine in determining authority to consent to
a search. Consent to a search given by a third person can be effective if the officer
reasonably believes the consent to be valid. But the apparent authority doctrine applies
only to reasonable mistakes of fact, not mistakes of law.

7. The State fails to meet its burden to show the lawfulness of a search if the officer who
conducts the search, faced with an ambiguous situation regarding the ownership of or
authority over the object to be searched, proceeds with the search without making further
inquiry.

Quentin John Boone, of the Law Office of Quentin J. Boone, of Hays, for
appellee.

Before MALONE, P.J., GREENE and McANANY, JJ.

McANANY, J.: The State appeals the trial court's suppression of evidence obtained in the
course of a search of the apartment of Florida Lee. Finding that the State has failed to establish
the lawfulness of the search, we affirm the trial court's ruling.

Deputy Sheriff Parks and Detective White responded to a complaint that marijuana smoke
was emanating from Lee's apartment. Lee consented to the officers entering her apartment to
discuss her neighbor's complaint. The officers smelled a strong odor of marijuana smoke inside
the apartment. There were eight other people in the apartment with Lee. White asked Lee if the
officers could search the apartment for marijuana. Lee agreed to the search.

Parks searched the bedroom. There were several coats on the bed and also some coats
and jackets on the floor. Parks did not know who owned the various coats and jackets. In the
course of his search, Parks found a black leather jacket laying on the bed that had a baggie of
marijuana in one of its pockets. Upon further examination, Parks found a wallet in the inside
pocket of the jacket. Inside the wallet, Parks discovered a small baggie that contained what Parks
believed to be methamphetamine and identification for Barry Tonroy, the defendant.

Parks and White then talked to Tonroy. Although Tonroy was not under arrest at the
time, White read him his Miranda rights. Tonroy told the officers that he owned the
marijuana,
but denied ownership of the methamphetamine. No officer asked for, and Tonroy never gave,
consent to search his jacket or his wallet. Parks did not believe it was necessary to determine who
owned the jacket before it was searched since Lee had already given consent to his search of the
apartment.

Tonroy was charged with one count of possession of methamphetamine, one count of
possession of marijuana, and one count of possession of drug paraphernalia. Tonroy moved to
suppress the evidence found inside the jacket and the statements he made to the officers after the
jacket was searched. The trial court suppressed the evidence. The State now pursues this
interlocutory appeal.

When a motion to suppress evidence based upon a claimed illegal search has been filed,
the State bears the burden of showing that the search was lawful. State v. Boyd, 275
Kan. 271,
273, 64 P.3d 419 (2003). When reviewing a motion to suppress evidence, we determine whether
the factual underpinnings of the trial court's decision are supported by substantial competent
evidence. However, the ultimate legal conclusion drawn from those facts is a legal question
requiring us to apply a de novo standard of review. We do not reweigh the evidence. State
v.
Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001). Here, the facts are essentially not in
dispute.
Therefore, whether the trial court should have suppressed the evidence is a question of law over
which we have unlimited review. Boyd, 275 Kan. at 273.

The officers did not obtain a warrant. Generally, a warrantless search is per se
unreasonable and a violation of the Fourth Amendment to the United States Constitution.
Consent, however, is an exception to this rule. 275 Kan. at 273. The State's entire justification
for the search of Tonroy's coat is Lee's consent to the search of her apartment. Accordingly, we
must consider whether Lee's consent was sufficient to allow Parks to search Tonroy's jacket.
There is no Kansas case directly on point.

If Lee and Tonroy had common or shared authority over Tonroy's jacket based on their
mutual use of the jacket and joint access and control over it, then Lee would have had authority in
common with Tonroy to consent to its search. See United States v. Matlock, 415
U.S. 164, 39 L.
Ed. 2d 242, 94 S. Ct. 988 (1974). Since there is no indication in the record that this was the case,
authority for the search of Tonroy's jacket must be found elsewhere.

In United States v. Salinas-Cano, 959 F.2d 861 (10th Cir. 1992), defendant
left his
suitcase in his girlfriend's apartment, where he had stayed on several occasions. After defendant's
arrest, the police asked his girlfriend for consent to search the apartment and, in particular,
defendant's possessions. The girlfriend consented to the search. The police opened defendant's
closed but unlocked suitcase and discovered cocaine. The police knew the suitcase belonged to
defendant. The girlfriend denied owning the contents of the suitcase. On appeal, the Tenth
Circuit Court of Appeals reversed the district court's denial of a motion to suppress and noted
Justice O'Connor's statements in United States v. Karo, 468 U.S. 705, 726, 82 L. Ed.
2d 530, 104
S. Ct. 3296 (1984) (O'Connor, J. concurring): "'[W]hen a guest in a private home has a private
container to which the homeowner has no right of access . . . the homeowner . . . lacks the power
to give effective consent to the search of the closed container.'" Salinas-Cano, 959
F.2d at 863.

The court in Salinas-Cano concluded that when examining a resident's
authority to
consent to the search of other people's property within the residence, the court should consider
(1) the type of container and determine whether it is of the type that commands a high degree of
privacy, (2) the precautions taken by the owner of the property to manifest the owner's subjective
expectation of privacy, and (3) the property owner's apparent lack of interest in the property or
whether the owner has disclaimed ownership in the property. 959 F.2d at 864. How do these
considerations apply in the present context?

Is the pocket of a jacket a "container" that commands a high degree of privacy? The
pocket of a jacket is like a purse in that it is a closed container which keeps personal items hidden
from public view. See State v. Bissegger, 76 P.3d 178, 182 (Utah App. 2003). One
does not
generally expect others to rummage through one's coat pockets without permission. It is hard to
imagine one seriously arguing that if social guests arrive at a host's home and are invited to leave
their coats on a bed in the bedroom, the host would be entitled to search through the pockets of
the guests without their knowledge and consent. In such a circumstance, the guests could expect
a high degree of privacy with respect to the contents of their coats. And if the host has no
authority to search through the pockets of the coats of the guests, it follows that the host would
have no authority to authorize others, such as the police, to do so.

We next consider whether Tonroy took precautions to manifest his subjective expectation
of privacy. Under the circumstances, the only thing Tonroy could have done would have been to
keep the jacket with him during his visit. Common sense tells us that social guests are not
required to keep their coats with them at all times while at the host's home in order to manifest a
subjective expectation of privacy. Social guests do not forfeit their right to privacy in their jackets
simply by leaving them on a bed with the coats and jackets of other guests in the host's bedroom.

Third, we examine the record to determine if defendant exhibited an apparent lack of
interest or disclaimer of interest in the jacket. Nothing in the record suggests that Tonroy was
aware that the police were going to search the entire apartment in general or his jacket in
particular. Detective White could not state with any degree of certainty that Tonroy overheard
his conversation with Lee about searching the apartment before the search began. Thus, there
was no impetus for Tonroy to retrieve his jacket in order to negate any perception that he had
abandoned his interest in it. Finally, there is no evidence that Tonroy affirmatively disclaimed
ownership in the coat before it was searched.

Other jurisdictions agree that consent by an owner or tenant of a residence does not
necessarily give the police consent to search closed containers within the residence that belong to
others. See Krise v. State, 746 N.E.2d 957, 967-71 (Ind. 2001) (housemate's consent
to search
house did not allow police to search defendant's purse in bathroom); State v. Grant,
614 N.W.2d
848, 853-55 (Iowa App. 2000) (homeowner's consent to search house did not allow police to
search defendant's zipped jacket pocket when defendant was guest and jacket in room where
defendant was staying); State v. Melbert, 649 So. 2d 740, 743-44 (La. App. 1994)
(homeowner's
consent to search house did not give police authority to search defendant's bootbag in room
where defendant was staying); Owens v. State, 322 Md. 616, 630-34, 589 A.2d 59
(1991) (tenant
of apartment could not give valid consent for police to search guest's zippered bag left at
apartment).

Lee did not have actual authority to consent to the search of Tonroy's jacket. However,
did Lee have apparent authority to consent to the search? Consent given by a third person can be
effective if the officers reasonably believed the consent to be valid. Illinois v.
Rodriguez, 497
U.S. 177, 185-86, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990). The apparent authority doctrine in
Rodriguez only applies to reasonable mistakes of fact and not mistakes of law.
Salinas-Cano, 959
F.2d at 865. Kansas has adopted the apparent authority doctrine. See State v.
Ratley, 16 Kan.
App. 2d 589, 595, 827 P.2d 78 (1992).

Did Parks reasonably believe that the jacket belonged to Lee or that she had common
authority over the jacket? The garment in question was a black, leather jacket. The State does
not argue that the style and size of the jacket was such that Parks could reasonably mistake it for
one owned and worn by a woman of Lee's size and build as opposed to a man. Further, the
search took place in February. The State makes no argument that the weather was such that the
officers would not have expected Lee's guests to have come to her apartment wearing coats and
jackets. Finally, Tonroy's jacket was not found hanging in Lee's closet commingled with other
apparel that Parks could reasonably assume belonged to Lee. The jacket was found in a pile of
other coats and jackets on the bed. The State offers nothing to rebut the reasonable assumption
that there is a high probability that coats and jackets piled on a bed in the bedroom of an
apartment during a social gathering attended by the host and eight guests are owned by the guests
rather than the host.

The State has the burden to show the lawfulness of its search. As stated in United
States
v. Whitfield, 939 F.2d 1071, 1075 (D.C. Cir. 1991) (quoting Rodriguez, 497
U.S. at 188-89):

"The burden cannot be met if agents, faced with an ambiguous situation, nevertheless
proceed without
making further inquiry. If the agents do not learn enough, if the circumstances make it unclear
whether
the property about to be searched is subject to 'mutual use' by the person giving consent, 'then
warrantless
entry is unlawful without further inquiry.' [Citations omitted.]"

The State failed to demonstrate that Parks had apparent authority as described in
Rodriguez to search Tonroy's jacket.

Though both parties, as well as the trial court, discussed State v. Rice, 264
Kan. 232, 955
P.2d 1258 (1998), and State v. Vandiver, 257 Kan. 53, 891 P.2d 350 (1995), these
cases, which
consider the authority of police to detain and search a guest's person, are not applicable. There
was no search of Tonroy's person in this case. The special conditions that apply in a search of
one's person do not apply in this case. Likewise, the State's reliance upon Wyoming v.
Houghton,
526 U.S. 295, 143 L. Ed. 2d 408, 119 S. Ct. 1297 (1999), is not well placed.
Houghton involved
the search of a vehicle. The Court in Houghton recognized that passengers and
drivers have a
reduced expectation of privacy with regard to property they transport in cars. 526 U.S. at 303;
see also California v. Acevedo, 500 U.S. 565, 578, 114 L. Ed. 2d 619, 111 S. Ct.
1982 (1991)
(stating that automobile searches differ from other searches).

The State failed to meet its burden of establishing the lawfulness of Park's search.
Accordingly, the trial court was correct in suppressing the evidence found in Tonroy's jacket and
in suppressing the statements Tonroy made to the officers after the search as "fruit of the
poisonous tree." See State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998).